Prosecutor hid deal in death-penalty case, court filing alleges

After the state’s star witness gave devastating testimony against Warren King at his 1998 death-penalty trial, prosecutor John B. Johnson told jurors there were “no deals” in exchange for his appearance on the stand.

“That would be a requirement to come out in this case because it tests his credibility,” Johnson said during closing arguments. He also asked, “Do we want to hide anything from you? No.”

But a recently filed court motion on King’s behalf contends Johnson had indeed made such a deal months before the trial. He had agreed to allow Walter Smith, King’s co-defendant, to escape a death sentence in exchange for his testimony, the motion said. Both King and Smith were charged with the murder of a woman during an attempted convenience store robbery in coastal Georgia.

King’s lawyers are hoping the revelations are enough to get a new trial for King, who has been on death row for more than 25 years.

The filing is buttressed by a sworn statement from Smith’s lawyer at the time. He said for Smith’s testimony, Johnson agreed to recommend a sentence of life in prison with the possibility of parole, even though Johnson acknowledged the victim’s family might not be happy with it.

Johnson broached the possibility of a deal “several months before Mr. King’s trial,” John Brewer III, one of Smith’s lawyers, said in a June 7 affidavit.

“I would never have recommended that Mr. Smith testify against Mr. King unless I knew for certain that he had a deal and would avoid the death penalty,” Brewer said.

Lawyers for King, who was sentenced to death, should have been provided this information under the 1963 U.S. Supreme Court decision, Brady v. Maryland, the recently filed motion said. That landmark decision requires prosecutors to turn over evidence they have that could be used to help exonerate a defendant a trial.

“It deprived Mr. King of a fair trial and produced the ultimate miscarriage of justice: an unreliable conviction and death sentence,” the filing said.

For Johnson, it is another allegation of misconduct in a career littered with them. In a 2020 investigation by The Atlanta Journal-Constitution, a number of judges found the prosecutor withheld critical information to obtain convictions in other cases .

When asked Monday about King’s motion, Johnson said, “I have no comment.”

King’s trial lawyers had filed motions to get Johnson to reveal any deals and they repeatedly asked Smith on cross-examination if one was in place. But both Johnson and Smith said there was no agreement, the motion said. King’s lawyers had good reason to suspect one because Johnson had given Smith immunity for his testimony, all the while keeping the murder charge and a potential death sentence in place against him.

Three years after King’s trial, Johnson allowed Smith to plead guilty for his role in the killing in exchange for a sentence of life with the possibility of parole.

‘Give it up’

Security video showed that Karen Crosby was humming “Amazing Grace” as she closed up the convenience store in the small southeast Georgia town of Surrency on the night of Sept. 13, 1994. Waiting outside were King and Smith with a handgun Smith said he’d taken from his aunt and uncle’s house.

Smith testified that after Crosby locked up the store and was walking to her car, King jumped out from behind the ice machine, pointed the gun at her and demanded, “Give it up.” Smith said after Crosby threw the store keys to them, he went inside to get the money at the cash register. But Smith said that triggered the alarm and as he fled the store he heard one gunshot and then another.

When King caught up to him, King said, “I hope I killed the bitch,” Smith testified.

King, who did not testify during the guilt-innocence part of the trial, took the stand during its sentencing phase. He said that Smith initially had the gun but handed it over after Crosby threw Smith the keys and just before he entered the store. After the alarm went off and Smith ran out of the store, Smith told King to shoot Crosby, but instead, King testified, he handed the gun back to Smith, who fired the fatal shots.

King’s motion said Smith’s testimony was the state’s only evidence tying King to having been the trigger man. If Johnson had disclosed the deal, King’s trial lawyers “would have been able to powerfully challenge Mr. Smith’s testimony by highlighting his motive to paint Mr. King, rather than himself, as the shooter, in order to save his life,” the motion said.

The motion was filed in Superior Court of Butts County, home to Georgia’s death row. King is almost out of appeals. Earlier this month, the U.S. Supreme Court declined to hear King’s latest appeal that alleged Johnson improperly excluded Black jurors from the trial .

‘Intentional misconduct’

Johnson began working for the district attorney’s office in the five-county Brunswick Judicial Circuit in 1977. He resigned from the office in 2021 but challenged incumbent DA Keith Higgins in this year’s Republican primary. Higgins won with 62 percent of the vote.

Johnson was highly regarded as a skilled trial lawyer but he has a dark history of being found hiding evidence he was legally required to share with the defense:

• In 2005, a judge found Johnson’s prosecution team “committed intentional misconduct” by withholding evidence in the death-penalty case against Larry Jenkins. Judge Anne Workman threw out the murder convictions and death sentence against Jenkins, requiring him to be retried.
• Three years later, a different judge overturned the murder convictions and death sentence against Larry Lee after finding Johnson illegally withheld evidence favorable to the defense. “The rights, which were enshrined to prevent miscarriages of justice and ensure the integrity of the fact-finding process, were all violated in this case,” Judge Gary McCorvey wrote.
• In 2020, a judge ordered a new trial for Dennis Perry , all but saying Johnson had obtained the conviction for the wrong person in the murders of a husband and wife at a Camden County church. Judge Stephen Scarlett noted that before Perry’s 2003 trial, Johnson told a judge “there are none that we know of at this time” when asked if there were any deal or inducements for state witnesses — when in fact a star witness had been promised a $12,000 reward. Perry’s exoneration occurred after he spent 20 years in prison.

Credit: Tyson Horne / tyson.horne@ajc.com

The recently filed motion in Butts County also says King’s new lawyers from the Georgia Resource Center, which represents people on death row, had obtained previously suppressed evidence that shows Johnson’s “discriminatory intent in jury selection against Black and female jurors.”

The attorneys are relying on the notes Johnson took during jury selection and which were recently turned over by the Brunswick DA’s office. They show Johnson noted the race and sex of every prospective juror, the motion said.

At trial, Johnson struck seven of eight qualified Black jurors while striking only three white jurors, all of them women . Because he struck no white men from the jury, a Black juror was 10 times more likely to be excused than a white juror, while women were four times more likely to be struck than men, the motion said.

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